The Open MindHost: Richard D. HeffnerGuest: Scott TurowTitle: Scott Turow on the Law (Part III)VTR: 7/21/03

I’m Richard Heffner, your host on The Open Mind. And this is the third of our programs with the extraordinarily readable and popular lawyer/novelist Scott Turow, whose most recent work of fiction touching on the always compelling subject of capital punishment is “Reversible Errors,” and whose sensitive and thoughtful new Farrar Strauss and Giroux volume is appropriately enough “Ultimate Punishment” a lawyer’s reflections on dealing with the death penalty.

Now I’d like to pick up, to some extent, where we left off last time, but Mr. Turow, I’d like to do it by touching on a number of subjects relating to the law that leave the issue of …

TUROW: Okay.

HEFFNER: … capital punishment. I made up a whole list and I really got them from thinking about programs I had done with Louis Nizer and Edward Bennett Williams and oh, so many other …

TUROW: MmmHmm.

HEFFNER: … great attorneys over the years. Number one because I have my own profound thoughts about it. What about cameras in the courts? What’s really your, your “fix” on that matter?

TUROW: Well, this is one of those things like capital punishment where my thinking has turned around. In the …the Constitution provides for a speedy and public trial. And I regard television as the, you know, the public’s eyes and ears and I thought therefore cameras ought to be in the courtroom. And, you know, the wise Chief Judge of the Seventh Circuit, William Bauer just used to shake his head at me when I would say this. And, you know, and I … a few years ago, called Judge Bauer, and I confessed, “Judge, you were right. I was wrong. You were right.”

The problem is that TV is such a loaded, loaded medium in this society. People tend to think that there is a division between the people on TV and them. They’re like the Greek Gods. And so when the camera comes into the courtroom all of a sudden they feel like they’re part of the life that is better than life. And, and they sort of take leave of their senses. It’s like Americans in Las Vegas. And we’ve just had too many goofy results … O.J. being the foremost of them. And, you know, everybody in that case … the jurors, the judge, the prosecutors, many of the defense lawyers seemed to lose track of themselves. So I, I wouldn’t ban, I wouldn’t ban this forever, but I’m pretty suspicious of it.

HEFFNER: But now wait a minute, wait a minute. You wouldn’t ban them forever, but when may they come into the courtroom? When we no longer play …

TUROW: When …

HEFFNER: … play to them?

TUROW: Well, yeah. When we would no longer play to the cameras.

HEFFNER: When does that happen?

TUROW: I don’t know, probably when we’ve got 500 cable access channels and people are more accustomed to being on TV.

HEFFNER: You think it’s that matter. Then how do you respond to the journalists insisting and this is true of the print journalists as well as the broadcast journalists, insisting that this is a violation of their rights.

TUROW: I think they have a pretty good argument, personally. But, you know, the courts have really temporized on what the meaning of a public trial is. You can certainly close certainly proceedings under DePasquale … so, if, if the presence of the media is going to be disruptive, the court has the right to limit that access. Obviously the presence of print journalists who just sit there and listen, like every other spectator, has not been disruptive. But the presence of the camera, like the camera that I’m looking at now is too large to ignore.

HEFFNER: But you know the fact of the matter is I remember when Harold Rothwax presided over the Steinberg case here in New York. As horrific as that case was …

TUROW: A horrible case.

HEFFNER: I wanted to see because Harold … Judge Rothwax had permitted cameras to come into the courtroom, and there was an experiment here in New York State …

TUROW: MmmHmm.

HEFFNER: … with cameras in the courts, and I happened at that time to be Chair of a State Commission set up by the Judiciary. And I wanted to see whether I could get rid of my ancient prejudices against …

TUROW: MmmHmm.

HEFFNER: … that beady red eye of the camera. And the camera was most unobtrusive; I think people were largely unaware, unless they wanted to primp for the camera, unaware of its presence. So that as miniaturization takes place increasingly and we become less and less aware of this tiny, tiny, tiny matter of a camera or sound equipment, are there other arguments that …

TUROW: Well, you know, it’s very hard to get witnesses on the stand normally. And the more so when it’s going to be broadcast to the entire community. You know, it’s, it’s true that somebody who goes into court and says something embarrassing or damaging, that that’s known. But that’s quite another thing when your neighbors are turning on their television set and watching you say it.

So, you know, it does not … I don’t think it has a salutary effect on the process. If the courts decide if the meaning of a public trial includes the presence of television cameras, I think the guarantee of public trials is far more important than this disruption. And I would certainly abide by it. But if somebody was asking me my opinion, as you are, that’s my opinion.

HEFFNER: Well, the, the public trial matter is resolved, is solved, is taken care of, isn’t it by the fact that these aren’t closed trials, we’re not …

TUROW: Right. Well “public” means that the public can come in and have access. But …how you decide that, that cameraman isn’t a member of the public and ought not be free to, you know, preserve and observe in the fashion that he and his employers would like, I mean there’s a lot of artificiality in that reasoning.

HEFFNER: Well, of course, his employers are eager to get the cameras in there so that they can spice up their news programs.

TUROW: Well, suppose a novelist goes down and watches a particularly lurid case like the Steinberg case because he wants to exploit the details in his next book. Nobody keeps him out.

HEFFNER: No? Perfectly true. But he doesn’t communicate it on the spot …

TUROW: Right.

HEFFNER: And he doesn’t do as much damage to the person

TUROW: … I mean as I said, I come out the other way on this. But I also recognize there’s a lot to say on the side of access.

HEFFNER: You think that the media, that the law and the media have played fair with us that the … that you lawyers and your adversarial proceedings and the media with their violations of our privacy have made much of a change in American life in the past half century?

TUROW: Well, I, I certainly … they have made the law a much more prominent force in this society. Now, that’s not because they force fed it to Americans. Americans have been very, very curious about the law because of its increasing role in the society. But they certainly have turned, you know, lawyers into celebrities. You mentioned Alan Dershowitz whose, you know, a great example of a television lawyer. I remember somebody said to me a few years ago, “You know, on the Harvard Law School faculty they don’t count Law Review articles anymore. They count television appearances.” And …but has the media played fair? Yeah, I think, I think generally speaking they’ve played fair.

HEFFNER: You think we’ve been protected sufficiently from the inroads of the media. What about the inroads of the lawyers? I mean there’s so much of a fuss now about the matter of limiting lawyers and the damage that lawyers do to the economics of the medical profession.

TUROW: Right.

HEFFNER: What’s your own feeling about those things.

TUROW: Well, you know, I’m the child of a doctor, so when you ask about that specific example …

HEFFNER: How do you balance …

TUROW: … I mean I really see that one from both sides. You know my friends who are plaintiffs’ lawyers say, you know, there’s never been a reduction in malpractice premiums when damage awards were capped. The insurance companies want these remedies because their, they want to enhance their profits. It’s not their sense of social justice. But I, I do think, you know, just based on what I saw in my own home, when, you know, watching my father adapt to a new era when he had to view patients as potential enemies, I, I think it’s harmful. And I think it’s been harmful in medicine. I think it’s one of the elements of our out of control medical costs in this country. And I personally would favor some restraints.

HEFFNER: You would?

TUROW: Yeah.

HEFFNER: What kind of restraints?

TUROW: I don’t mind …first of all I think lawyers on a contingency ought to be compensated on a sliding scale, so that …

HEFFNER: Specifically how?

TUROW: Well, a third up to “this” point, you know; 25%, then 15%, 10%, 5% …

HEFFNER: The point being amounts of dollars.

TUROW: Amounts of dollars. So that they, so they don’t have incentives to just jack up verdicts radically.

HEFFNER: But you were expressing before your feeling that the media people have every right to be concerned about the drive to keep them out of the courts …

TUROW: MmmHmm. MmmHmm.

HEFFNER: What about the lawyers? Limiting them as we don’t limit other …

TUROW: Well, I think that any restraint on the plaintiff’s bar has got to be matched with restraints … I mean you really have two contending forces here; the plaintiff’s lawyers and the insurance companies. And Lord knows that there’s plenty to be said against the insurance companies as well.

So, you know, I think the two things have to go hand in hand. You know it’s one thing to say you won’t compensate the plaintiffs’ lawyers as generously. But it’s …yeah … I, I agree with them when they say the insurance companies can’t just walk off with the profits. There’s got to be a guarantee that premiums are going to be reduced. That’s just one example.

And the other thing I have to say is I would be very unhappy if, if plaintiff’s lawyers were completely defanged. Because there are so many areas in this society which resist reform, especially when it involves economically powerful interests. And if you look at what’s been accomplished in the tobacco litigation, for example, that’s an important, beneficial reform that simply could not be accomplished legislatively in this country and we would not have had the reform that we’re getting if it were not for plaintiffs’ lawyers. So, they, in their so-called “private Attorney General-ship”, they do a lot of good. But I don’t think the rapacious economic instincts of both insurance companies and plaintiffs’ lawyers are properly restrained at the moment.

HEFFNER: You think that the traditions of the law, those that have to do with limitations upon the power of prosecution, the power of government have been observed sufficiently since 9/11?

TUROW: No.

HEFFNER: What are your concerns?

TUROW: I am … I am very concerned by a lot of what’s going on. To me the most extreme case is the case of Jose Padilla. And American citizen who was arrested in Chicago, returning from, probably Pakistan, and initially seized on a material witness warrant, he was brought here to New York and then, as he was about to proceed to a hearing on that warrant, the government transferred his custody from the Justice Department to the Defense Department and President Bush declared him an “enemy combatant”.

Since that time Padilla has been held in a brig in South Carolina. He has not been allowed any access to his lawyer, he has not been allowed to see his family, the government admits that they are interrogating him in a relentless way designed to soften him up promised … They think he is a member of Al Qaeda who is aiming to come here and build a “dirty” bomb.

They, except for a brief affidavit from an official in the Justice Department who is sort of gathering intelligence and we’ve seen recently how “good” this intelligence about, you know, the activities of foreign terrorists is … except for that there’s … he’s literally being held on the say-so of the President of the United States, without trial, without consultation with his attorney.

The Justice Department is willing to concede that he’s entitled to a habeas corpus hearing, but they also contend that the evidence at that hearing, the evidentiary requirements are met completely by this six page affidavit; this literally “hearsay” affidavit from this Defense Department official. And as I said recently in this city, when somebody asked me about this … I didn’t know in this country you could arrest a citizen and hold him incommunicado without a hearing. I didn’t know it was possible under the Constitution. I didn’t know there was any serious argument for doing that. And this is a frightening power. The notion that the government can simply pluck any citizen off the street on the basis of some summary affidavit and hold them without a hearing, without a trial? It’s, it’s frightening.

HEFFNER: Okay. You’re frightened by it. But this wasn’t any citizen, was it? And presumably there is some reason that the government has, other than possibly it seeks to destroy …

TUROW: They have some reason in every criminal case. And very often, most often they’re right. We have a real simple way of deciding these things in this country. You say to the government, “prove it”, and in this case the judge, here in New York, has … has said to them, “you don’t really have to prove that much. I’ll accept the fact that this guy fits in a different category. But you’ve got to offer some evidence which is subject to contest about what Padilla supposedly has done and let his lawyers cross-examine that, cross-examine your witnesses, give him some form of discovery …”. The government doesn’t want to do it; they just want to hold on to this …

HEFFNER: You said at some point, what you always need to do is look at the other guy’s motives …

TUROW: MmmHmm.

HEFFNER: … try and understand what he’s saying …

TUROW: MmmHmm.

HEFFNER: …what he’s seeing, what he’s believing. What do you think?

TUROW: I think they … they believe that Padilla is a potential terrorist although, you know, I would know he was arrested as far as I know without, you know, bomb making equipment or something like that. They think he’s a potential terrorist. They think he’s a member of Al Qaeda; they think, if they’re allowed to interrogate him for years they’ll break him down and get his secrets. And, you know, that it will help in the war on terror.

And again, their position is one, as I’ve talked about with you in other settings of “I’m not taking the chance. I’m not just going to let this guy go, I’ve got enough good information to make me think that he’s up to no good. And I’m not just simply going to release him and let him go figure out how to terrorize Americans.” I understand that. If I was in their position, I wouldn’t want to do it either. But …

HEFFNER: But …

TUROW: … I’d say … I, I would accept the fact that I have to prove, I have to offer some proof before I impose this kind of punishment on this man.

HEFFNER: Why do you think that they are standing fast at this point?

TUROW: I think they don’t … I think they can’t prove it. I think they have intelligence sources that they don’t want to reveal and probably also don’t want to see scrutinized.

HEFFNER: Should we blast them open and make them reveal them and make them … let them be scrutinized …

TUROW: If they want to hold on to Jose Padilla … yes. I think that the rights of citizens to be secure from the government is important enough that if they want to hold Jose Padilla, if they think he poses this kind of massive threat to American society … and he might. They’ve got to prove it.

HEFFNER: And if he weren’t an American citizen?

TUROW: If he weren’t an American citizen, it’s a different issue.

HEFFNER: Tell me how different. He’s a human being.

TUROW: Well, yes, a human being, but, you know, my thinking on all of this devolves from the difference between capital punishment and war. Both are forms of state killing. Neither one of them is a very happy occurrence. But I don’t think that we’re going to be able to outlaw war within the confines of our own society. And we’re not going to be able to prevent ourselves from having foreign enemies.

But to our citizens we have made a special promise … indeed, this government belongs to them, they’re the owners here. And it sort of reverses roles when the government says “my might is superior to yours, I can hold you on my say-so, you know without limitation.”

HEFFNER: Does anyone you know, outside of the government, certainly not inside the government, feel …”okay, I understand what they’re saying, I understand the Ashcroft position …”

TUROW: MmmHmm.

HEFFNER: … I understand the Bush position …

TUROW: MmmHmm.

HEFFNER: …and I’ve got to give them the right to protect us because presumably that’s what they’re doing …

TUROW: Does anybody I know feel that way? I’m sure I have many friends who feel that way. I don’t. I, I … you know, the test of a country …

HEFFNER: Yeah.

TUROW: … is the way it reacts to these extreme situations. I was frankly proud, although I thought it had other motivations of the, of the way the Administration avoided trying to demonize all people of the Muslim faith in this country in the wake of 9/11. And somebody was sensitive to the Korematsu case and the terrible thing that we did to Japanese Americans during World War II.

But, I would say not sensitive enough because looking at Padilla, looking at, you know, that, the ways that immigrants have been treated in the wake of 9/11 … you know, we’ve gone too far. We’ve thrown the baby out with the bathwater. And it is … and I simply, I really am deeply concerned by the notion of according the government the power to simply hold somebody on the say-so of the President. That is no different than what went on in Iraq or went on in Nazi Germany … it’s just no damn different.

HEFFNER: You know, others have said that Bill Kunstler and Alan Dershowitz feel the same way about lesser government intrusions …

TUROW: MmmHmm.

HEFFNER: … do you sympathetize with their …

TUROW: You know, I hate to be lawyerly, but it depends, it’s a case by case thing. And you know, I’ve been the defense lawyer now many years longer than I’ve been a prosecutor and my inclination is to see the government overreaching in, in many instances. But …I mean I think we exist on a fairly simply model. That this government does belong to the people and the government has to respect their autonomy first and foremost. It’s not unlimited. The government can incarcerate, the government can, can strip citizens of that liberty, but they can’t just do it on the say-so of the government, it just turns the world upside down.

HEFFNER: Turns it upside down … are you concerned that it … that this upside down status will be forever? Do you think we’ve gone down the slippery slope …

TUROW: Well I don’t see terrorism ending any time soon. I mean we basically went to Iraq and now find ourselves, you know, being terrorized. You know this is a very unhappy face of technology that, you know, we create these weapons and we create these machines and somebody figures out how to use them destructively.

I think for me, personally the greatest unhappiness I felt on the 11th of September 2000, the recognition … 2001 … was the recognition that probably in somebody’s lifetime, we’re going to see an atomic device used. If you can turn an airplane into a weapon of mass destruction, somebody’s going to figure out somewhere …

HEFFNER: Scott Turow, isn’t that what Mr. Ashcroft and others in Washington will say their fears …

TUROW: Yet that’s their fear.

HEFFNER: …are just the same …

TUROW: … that’s their fear.

HEFFNER: … and therefore they’ve done things that they would never have done before because the fear is so much greater.

TUROW: The fear is great, but we … I mean what we’re talking about is the stuff that is fundamental to this society. You know the right to live and think freely and, you know, I’m not ready to give that up. I think that’s what distinguishes our lives as Americans.

HEFFNER: That’s a good place in which to end our discussion. Scott Turow, thanks so much for joining me today.

TUROW: Oh, it’s been a great pleasure. Thank you.

HEFFNER: Thanks. And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.